International Justice in The Hague

The Hague is the seat of the Dutch government, although it is not actually Holland’s capital (that honor belongs to Amsterdam). It also functions as the center of a system of international courts and tribunals, established since World War II, that function alongside, and in some cases arguably supersede, traditional state-based national legal systems. The city’s status as a seat of international law was solidified, so to speak, with Andrew Carnegie’s donation in 1903 of $1.5 million for the construction of The Hague’s Peace Palace, which today houses the International Court of Justice (ICJ), the Permanent Court of Arbitration (PCA), and The Hague Academy of International Law. Nowadays, the International Criminal Court (ICC), established in 2002, is also headquartered in The Hague.

One cannot visit The Hague and the two permanent international courts located there (the ICJ and ICC), as this writer did last July, without appreciating that the continuing evolution of these institutions is historically momentous. For at least 360 years our world has been dominated by the concept of the absolute and autonomous sovereignty of national states, a concept first codified in the Peace of Westphalia in 1648 (exactly three hundred and sixty years ago last year). The international courts and tribunals centered in The Hague are etching changes in our international, and even our national, legal frameworks.

Some of the international tribunals located in The Hague—those established to deal with specific, localized crimes against humanity—are temporary in nature, intended to cease functioning once their task is completed. Perhaps best known is the International Criminal Tribunal for the Former Yugoslavia (ICTY), which was established in 1993. Despite its long life it is far from moribund, as the arrest last July of the notorious Serb leader Radon Karadzic reminds us. He is now in prison near The Hague awaiting trial.

Unlike the ICTY, the ICJ is a permanent court, established under the United Nations Charter in 1945, with limited jurisdiction. Specifically, the ICJ may (a) adjudicate disputes between States and (b) give advisory opinions on legal questions referred to it by duly authorized U.N. organs and specialized agencies.

Despite these limitations, the ICJ has been criticized for a de facto expansion of its jurisdiction in some recent controversial decisions. For example, in its 2004 decision regarding Israel’s construction of a security fence in the occupied West Bank, the ICJ appeared in effect to be adjudicating a dispute between a state (Israel) and a non-state (the Palestinians), the very type of dispute it is not permitted to hear under its governing statute. The ICJ felt able to decide the matter because it had been referred to it by the General Assembly under its Advisory Opinion jurisdiction; nevertheless it faced fierce criticism for even hearing the case.

Likewise, in a case brought by Mexico against the United States, the ICJ, despite having no official jurisdiction over criminal matters, in effect attempted to intervene in what would appear to be the most purely domestic matter, a criminal prosecution under state law in the U.S. Finding that a Mexican national convicted of a heinous crime in Texas might not have been advised of his right to have the Mexican consulate notified of his arrest, the ICJ in effect ordered the U.S. government to reopen the state proceeding. The U.S. Supreme Court found in Medellin v. Texas, that the federal government had no such authority. Significantly, however, the majority in that case agreed that the ICJ’s decision constituted a binding international law obligation of the United States; it decided, however, that Congress had to pass an enabling statute before this obligation could be put into effect.

Also a permanent fixture in the Hague is the ICC which exists pursuant to a treaty, the “Rome Statute of the International Criminal Court.” To date 108 countries have consented to the ICC’s jurisdiction by singing the Treaty of Rome; significantly, China, Russia, the United States, and India have not joined. Like the ICJ, the ICC also has limited jurisdiction: it is concerned with the most serious crimes of concern to the international community as a whole, which are identified in the Rome Statute as genocide, crimes against humanity, war crimes, and “the crime of aggression.” (The latter, however, has not yet been defined in a way that allows the ICC actually to exercise jurisdiction in this area.) Importantly, the ICC is not a court of primary jurisdiction; it does not replace national prosecutorial and court systems and can only prosecute crimes when those systems cannot or are unwilling to do so.

The ICC was most recently in the news when, in mid-July (only a few days after my visit there), it indicted the President of Sudan on charges of genocide, war crimes and crimes against humanity committed in Darfur. (Interestingly, although Sudan is not a party to the Rome Statute, the ICC has jurisdiction through a referral from the U.N. Security Council, an indication that not signing the treaty does not guarantee immunity from prosecution by this international tribunal.)

The Darfur indictment is both the first brought by the ICC on genocide charges and the first brought against a sitting head of state. Whether it will have any impact on the Darfur situation remains to be seen (there are many who think it will be ineffectual). Certainly it is possible that it will have an impact in Darfur and also that this indictment directed against a small country in a not very powerful part of the world is the first crack in an edifice of autonomous state sovereignty that has served the world both well and ill for some time.

Whether the current economic crisis will have an effect on these evolving institutions of international justice remains to be seen. However, I am convinced that we need to elevate the activities of these international courts to a more prominent place in our public debate, lest we find that we have lost the ability to influence, in a thoughtful and productive way, the developments I have described.